Georgia's Surrogacy and A.R.T. Pioneer

"When it is all said and done, the goal in surrogacy boils down to 2 things: a healthy child and the names of the intended parents on the birth certificate." --Mark Johnson

"Nothing is more complicated than a pregnancy in another woman's uterus. My job is to demystify the process and to build a team which will cooperatively help good folks build families." -- Mark Johnson

Representation in court proceedings throughout Georgia involving all issues related to surrogacy and assisted reproductive treatment, including multi-state and international issues of location of surrogates, infertile couples and infertility clinics in neighboring states.

Georgia's first surrogacy babies, Parker Patzke (born 1993) and Payne Patzke (born 1992)

Gestational Surrogacy

In 1991, Mark Johnson was approached by a client with a unique and unprecedented proposal: to represent her and her husband in the first surrogacy ever in the state of Georgia. Joan Barnes had lined up a surrogate to carry her and her husband Dave Patzke's embryos, and had convinced Dr. Dorothy Mitchell-Leef of Reproductive Biology Associates in Atlanta to serve as her Reproductive Endocrinologist. Dr. Michael Tucker would be her embryologist. But the fact remained that there was absolutely no legal road map in Georgia for the most complicated of all personal and legal endeavors--a pregnancy in another woman's uterus.

Facing the absolute dearth of law in Georgia, Johnson expended hundreds of hours in drawing the best elements from contracts from numerous states, and modeled an approach utilizing theretofore disparate elements of Georgia law for a pre birth legal proceeding and declaration of maternity and paternity in the intended and genetic parents; a release of parental rights and responsibilities of the surrogate and her husband to the child to be born; specifying that the intended parents would be actively involved throughout the pregnancy, and that they could attend doctor's appointments; clarification that the intended parents would make elective medical decisions on behalf of the child; compensating the surrogate and assuring all pregnancy and birth related expenses would be paid by the intended parents; and that the intended parents would have naming rights of the child, among numerous other issues.

But the state of Georgia, as issuer of birth certificates, needed to be on board. "Mother" under Georgia law retained its historic definition, and had not kept pace with the recent medical advances of egg retrieval and in vitro fertilization, where the biological aspects of motherhood were divided into nature (the genetics of the egg provider) and nurture (the gestational carrying of the embryo by the surrogate). As a consequence, the designation of "Mother" on Georgia birth certificates was rendered ambiguous in these A.R.T. circumstances, and the Georgia Assistant Attorney General representing the Georgia Department of Vital Records, William Droze, agreed that Georgia birth records should be accurate. He embraced Johnson's pre birth Declaratory Judgment of Maternity and Paternity approach, and agreed that such a judge's ruling would be enforced by his represented department, and that birth certificates would issue accordingly.

The "friendly" legal proceeding addressed the fact that normal legal presumptions did not apply, i.e., that the surrogate giving birth would customarily be considered the mother of the child and that her husband would ordinarily be assumed the father in a typical pregnancy. To provide the judge a comfort factor on the genetic determination of the unborn child, Johnson utilized a Doctors' Affidavit, tracing the retrieval/extraction of the eggs, their fertilization in vitro, and the embryo transfer into the surrogate, which conclusively determined paternity and maternity in the genetic/intended parents. Judge Michael B. Stoddard of the Cobb County Superior Court found the case presented by Mark Johnson to be compelling, and entered the first Declaratory Judgment of Maternity and Paternity in Georgia legal history.

The pre birth Declaratory Judgment of Maternity and Paternity had the salubrious effects of arranging smooth transitions in the delivery room on issues, such as responsibility for birthing expenses in the intended parents and in recognition by hospital staff of parental rights in the intended parents, so that the surrogate could concentrate on the real task at hand--delivering a healthy baby. For in the end, the goal is a healthy baby and a birth certificate with the intended parents' names on it. And the order would clarify that the intended parents could participate in the delivery and would leave the hospital with the baby.

The birth of their child and the legal process went so flawlessly for Dave and Joan, that they used the same team again, and their surrogate delivered Georgia's second baby through gestational surrogacy. Joan Barnes became a national and international advocate of surrogacy and A.R.T., and freely communicated the circumstances of her own surrogacies.

To this day, all successful surrogacy and A.R.T. lawyers in Georgia continue to use this approach trail blazed by Mark Johnson.

Artificial Insemination/Traditional Surrogacy

Mark Johnson was also the attorney in the first Artificial Insemination/Traditional Surrogacy in Georgia in 1992, where the intended parents and surrogate relocated from New York after their surrogate was pregnant in their arranged surrogacy and the New York legislature subsequently outlawed the procedure. Johnson combined elements of the pre-birth Declaratory Judgment of Paternity from his ground breaking gestational surrogacy approach, coupled with a step parent adoption where the intended mother replaced the surrogate. Again, the Georgia Attorney General and the Trial Court agreed with, and adopted, another new approach formulated by Mark Johnson.

This legal template worked so well, that the intended parents engaged the same surrogate to bear their second child, this time entirely within the state of Georgia.

Donor Surrogacy

In 1999, Mark Johnson represented Georgia's first donor surrogacy, where a donated egg was used in an otherwise gestational surrogacy. As there was a family history of Tay Sachs disease on the husband's side, an egg donor of non-Jewish, non-Eastern European origin was located to lessen the possibility of this debilitating genetic disease afflicting the child to be born.

As a “stranger gamete” egg was introduced, without genetic tie to either the surrogate or to the intended parents, the next logical progression in Georgia Surrogacy Law was surmounted by relying on the previously-sanctioned gestational surrogacy approach, coupled with an equal protection analysis; Georgia had long recognized donation of sperm in artificial insemination paternity analysis, but failed to grant the same rights to donated eggs in maternity analysis. Mark Johnson contended this violated the Equal Protection Clauses of the US and Georgia Constitutions.

As had been true twice before, the Georgia Attorney General and the Trial Court agreed with, and adopted, another new approach formulated by Mark Johnson. And the child was born healthy and disease free.

Recognition of Mark Johnson's Work

Mark Johnson's groundbreaking efforts were recognized not only in Georgia, but nationally where he was invited by the American Society of Reproductive Medicine (ASRM) and the late Dr. Sam Thatcher, noted for his groundbreaking A.R.T. work at Johns Hopkins, Yale, and Edinburgh and later in his cost-effective reproductive clinics in Tennessee and North Carolina. Johnson spoke at the ASRM Annual Conference in San Diego in 2000 on the topic of INFORMED CONSENT AND THIRD PARTY A.R.T.

In 2001, Mark Johnson delivered the following paper at an Adoption Seminar:

THIRD PARTY ASSISTED REPRODUCTIVE TECHNOLOGY (A.R.T.) AND SURROGACY IN GEORGIA.

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